FFRF: Supreme Court does bare minimum in tossing mifepristone case


The Freedom From Religion Foundation welcomes the U.S. Supreme Court decision today ending a phony lawsuit seeking to curtail availability of the abortion medication mifepristone. It warns, though, that the crusade against medication abortion is only beginning.

Anti-abortion groups sued over the Food and Drug Administration’s approval and regulations relating to mifepristone, which is the first of a two-drug protocol used to end pregnancies. The high court ruled, as FFRF’s friend-of-the-court brief urged, that the anti-abortion groups and their members lacked legal standing to sue.

“We can breathe a sigh of relief for now,” comments FFRF Co-President Annie Laurie Gaylor. “The court has done the bare minimum in tossing this case. However, we know that religiously motivated anti-abortion extremists will continue seeking to abolish abortion entirely in the United States — and they have friends on our highest court.”

In a unanimous opinion, the court ruled that the anti-abortion plaintiffs could not demonstrate that they suffered a sufficient injury in order to sue. Justice Brett Kavanaugh, writing for the court, explained: “The plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain. Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice. Therefore, the plaintiffs lack standing to challenge FDA’s actions.”

Several anti-abortion physicians had claimed that at some point they might need to treat a patient suffering from unlikely complications caused by mifepristone (even though they admitted to having religious objections to the drug). Contrary to assertions of these physicians, medication abortion is extremely safe. More than 5 million U.S. women have used mifepristone to end pregnancies in the past 23 years, with a serious complication rate of less than 1 percent.

The court’s opinion largely tracked the reasoning that FFRF’s amicus brief laid out: “Here, the plaintiff doctors and medical associations are unregulated parties who seek to challenge FDA’s regulation of others. Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone. But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything.”

Abortion medication accounted for 63 percent of all abortions in the United States in 2023, so zealots are increasingly targeting it. The state of Louisiana, which already bans almost all abortions, in late May passed a law banning medication abortion without a prescription.

FFRF’s amicus brief asserted that the FDA had taken no regulatory action relating to the plaintiffs that threatened their rights of conscience. Its amicus explained, “In this instance, anti-abortion advocates seek to use the courts to limit access to a safe and effective medication used for abortion.”

The lawsuit in Alliance for Hippocratic Medicine v. FDA was filed by Alliance Defending Freedom, a Christian nationalist legal outfit with assets of at least $78.5 million. It represents anti-abortion advocates who judge-shopped U.S. District Judge Matthew Kacsmaryk, a Christian nationalist extremist whose nomination FFRF actively opposed. Kacsmaryk issued a shocking ruling in April 2023 banning mifepristone nationwide.

The Supreme Court quickly decreed at the time that mifepristone would remain available under current rules until the litigation concluded. The 5th U.S. Circuit Court of Appeals last August then ruled to limit abortion medication to just seven weeks of gestation, instead of 10, and to ban telemedicine and mail-order shipments for abortion pills. At that point, the Supreme Court had no choice but to hear the case. The challenge not only endangered reproductive rights, but, as a startling attack on regulatory powers, science and pharmaceutical corporations, had far-reaching consequences.

“This was the correct decision by the Supreme Court, but this case never should have made it this far,” says FFRF Legal Director Patrick Elliott. “We will continue to oppose religious extremists who seek to abuse our court system to impose their religion on all Americans.”

The Freedom From Religion Foundation is a national nonprofit organization with 40,000 members and several chapters across the country. Our purposes are to protect the constitutional principle of separation between state and church, and to educate the public on matters relating to nontheism. 

Freedom From Religion Foundation

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